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Prohibited conduct ― direct discrimination

Produced by Tolley in association with
Employment Tax
Guidance

Prohibited conduct ― direct discrimination

Produced by Tolley in association with
Employment Tax
Guidance
imgtext

A person directly discriminates against another person where:

They treat them less favourably than they treat or would treat othersThis is 'the treatment'
They do so because of a protected characteristicThis is 'the reason for the treatment'

EqA 2010, s 13

For a discussion of what constitutes a protected characteristic, see the Protected characteristics guidance note.

Direct discrimination can never be justified. Once found it will always be held unlawful. There is one important exception to this blanket rule, which makes a justification defence potentially available in the case of direct age discrimination. See the Justification of conduct guidance note.

If discrimination is not overt, but instead is the result of ordinarily acceptable treatment that disproportionately affects one group over another, it may constitute indirect discrimination. See the Prohibited conduct ― indirect discrimination guidance note.

There must be less favourable treatment

In a scenario where a person believes that they have been discriminated against they should first ascertain whether the discrimination was direct.

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Emma Bartlett
Emma Bartlett

Partner at Charles Russell Speechlys LLP


Emma advises on all aspects of employment law including unlawful discrimination, whistleblowing, equal pay, unfair dismissal, breach of contract, restrictive covenants, protecting confidential information, boardroom disputes and claims under TUPE. She has experience in obtaining and executing interim injunctions for breach of confidentiality and/or restrictive covenant provisions. She also leads diversity issues for Charles Russell Speechlys employment team.   With a strong record in negotiating and resolving complex employment disputes, Emma is considered a skilled deal broker. She is a specialist in contentious discrimination matters and has significant experience in handling high value contentious claims for employers and senior individuals. Emma acts for employers, employees and trade unions. Her client base is broad, both in terms of the range of work and the sectors in which they operate. Amongst these clients are a number of growing, dynamic businesses (including UK start-ups), as well as long established financial institutions, and senior executives.   Emma speaks regularly on diversity issues, edits the diversity sections of Lawtel Employment Precedents and Company Policy Documents and certain diversity sections of Tolley Guidance Employment Tax online, and regularly contributes to article in HR and legal publications as well as comments in the national press on diversity issues.   Experience Successfully defended a tribunal claim of race and religious discrimination against a household name private members club. Added complications arose as the matter was reported in the press before judgment was given. An appeal to the Employment Appeals Tribunal was rejected. Advised and represented a large London retailer in relation to a multi-discrimination employment tribunal complaint (direct, indirect, victimisation and harassment based on race and religion). The claim was complicated by the variety of allegations and the worker's status; there were three preliminary hearings before a full merits hearing was listed. There were also four named Respondents to the claim. Successfully settled the action for a nominal sum, with agreement that all allegations were retracted and not repeated despite the action continuing against the other Respondents. Advised and negotiated service agreements for the senior management team of the seller on a multimillion pound share sale of a UK business. A major legal victory for a pilot employed by a household name airline, in a landmark case against the airline for indirect age discrimination. The decision has industry-wide ramifications for airlines and other organisations which provide a combination of long-term permanent health insurance or similar income protection payments via third party and self-insurance.

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